Judgment of General Term, affirming judgment for plaintiff, affirmed. Opinion by Miller, J. All con cur. ant at the time claimed, it was not | 634; 3 id., 511, 522; 37 id., 59, 73; convenient for plaintiff then to 36 Barb., 88, 94. make absolute payment on account of the alleged mortgage debt. It cannot be said that the judgment in the Nebraska suit was merely a decision that the moneys claimed in that suit were not repayments on account of that advance. That decision embraces the question presented as to the loans being made, as well as the claim of defendant that they were only payments upon the alleged mortgage debt. The fact that the defendant in the Nebraska suit did not demand judgment against the plaintiff in that action for the balance due him does not change the issue which was tried, as the defendant had a right to set up his claim as a defense merely, as he did, and not as a counterclaim. It being so used it cannot now be presented as a counterclaim against plaintiff's demand in this action. Defendant having had his day in court in the Nebraska case upon the issue there presented cannot in this case be allowed to contest the ADVERSE POSSESSION. PRACTICE. N. Y. COURT OF APPEALS. Whiting, applt., v. Edmunds et al., respts. Decided Jan. 15, 1884. The possession of a tenant is the possession of the landlord not only during the term but presumably for twenty years thereafter, notwithstanding any claim by the tenant or his successors of a hostile title. To initiate an adverse holding the tenant must surrender possession to the landlord or do something equivalent thereto and bring home to him knowledge of the adverse claim. One C., who held a paper title to certain premises, executed a deed thereof to one T., whose wife at the time held the title to the premises under a former deed to T. Held, That the deed from C. was not champertous; that it was possible that T. was in possession and that he took the deed with the knowledge and consent of his wife. same. 35 N. Y., 331; 16 Wend., An admission which has come into the case 583; 94 U. S., 351, 352. The judgment in the Nebraska case is final and conclusive between the parties not only as to the matters actually determined but as to every other matter the parties might have litigated and decided as incident to or essentially connected with the subject matter of the litigation within the purview of the original action either as a matter of claim or of defense. 85 N. Y., 421, 436; 79 id., Vol. 18-No. 18a. without any challenge as to its admissibility or competency cannot be rejected or disregarded. This was an action of ejectment. It appeared that one W., in 1823, executed a lease of the premises in question for twenty years, and in 1824 they were in possession of O., as tenant under said lease. One R. T., who had or claimed a title. under a deed from B., employed I. to buy the lease from O. He did so with money furnished by R. T., but I. took an assignment in his | Cow., 129; 53 N. Y., 293; Code of Proc., § 86; Code Civil Proc., $373; 1 Washb. on R. P. (3d. ed.), 492; 1 Cow., 575; 20 Penn St., 62; 97 Mass., 105. In 1869 C. executed to G. F. T. deed of the premises, and the latter gave back a mortgage thereon. At that time the title under the deed to G. F. T., of 1846, was in his wife. This mortgage was assigned to plaintiff who in 1870 brought an action to foreclose it, making the wife of G. F. T. a party defendant. Upon a sale under a judgment in said action in 1874 C. purchased the premises and received a referee's deed. Defendants claimed that the deed from C. was champertous. own name. Thereupon R. T. told H. V. Howland, for applt. Held, Error; that if R. T. be- Held, Untenable; that upon the fact proved it was possible that G. F. T. was in possession when the deed from C. to him was given, and that he took the deed and gave back the mortgage with the knowledge and assent of his wife. The parties to this action stipulated that either party could read from a printed case in another action "whatever was relevant in this action." In that case there was a stipulation admitting certain facts, which was read without objection. Held, That the admission having come into the case without any challenge of its admissibility or competency as proof of the fact asserted it cannot be rejected or disregarded. 44 N. Y., 158; 36 id., 605–606. A tenant cannot by a disclaimer or by mere words denying the landlord's title and asserting one of his own work a forfeiture of his tenancy or set running an adverse possession. 9 N. Y., 1. Where the relation of landlord and tenant has been once established the possesion of the latter and that of his grantees and assignees is the ADMINISTRATION. N. Y. COURT OF APPEALS. In re estate of Goddard, deceased. Decided Jan. 29, 1884. possession of the landlord and Chap. 383, Laws of 1877, did not impose an not hostile or adverse. 5 Cow., 129; 53 N. Y., 233. This is true even where the grantee has taken a deed of the fee in ignorance of the fact that his grantor stood in the relation of a tenant, the latter denving any such relation. Johns., 499. 3 imperative duty on courts and surrogates to appoint the Brooklyn Trust Company as administrator in the cases mentioned, but merely conferred an authority to be exercised in the discretion of such courts or surrogates and the exercise of such discretion cannot be reviewed unless it appears that there was such a gross and arbitrary exercise of the power as amounts to an abuse of a legal discretion. So far as said act of 1877 purports to confer power to issue letters to the Trust Company in the cases provided for in Chap. 124, Laws of 1882, it is repealed by the latter act. Reversing S. C., 17 W. Dig., 557. The controversy involved in this appeal relates to the right to administer upon the estate of G. It appeared that G., a resident of Kings county in this State, died there February 19, 1883, intestate, possessing about $25,000 of per The possession of a tenant in subordination to the title of the landlord continues not only during the running of the term, but is presumed to be such and to remain unchanged until twenty years after the end of the term, and notwithstanding any claim by the tenant or his successors of a hostile title. This presumption may be rebutted, but to do so effectively and initiate an adverse holding the ten-sonal estate. ant must surrender the possession to the landlord or do something equivalent to that, and bring home to him knowledge of the adverse claim. Judgment of General Term, affirming nonsuit, reversed and new trial granted. Opinion by Finch, J. All concur, except Miller, J., taking no part. All the adult next of kin, two residing in Kings county and one in Chicago, Illinois, petitioned the surrogate for the appointment of the Brooklyn Trust Company as administrator. The Public administrator of Kings county opposed this appointment on the grounds that under the statutes he was exclusively entitled to the administration of such estate, and if not in law exclusively entitled to such administration, it was in the power of the surrogate in the exercise of his discretion to issue letters to him. The surrogate decided that the Public Ad ministrator had the prior right to administer and a proper exercise of his discretion, if such discretion existed, required his appointment. An adult resident daughter, one of the petitioners, appealed to the General Term and it reversed the decision of the surrogate and remitted the proceedings to him with directions to issue letters to the Trust Company. From this order the Public Administrator appealed to this court. Chapter 383 of the Laws of 1877 conferred upon the Trust Company the capacity to act as a natural person in the performance of the duties of an executor or administrator, and the absolute and exclusive right to receive let ters upon the estate of a deceased person in all cases where they were named in the will as executors thereof. Said act provides that courts or surrogates "shall grant" letters of administration to such company upon the application of a party interested in the estate in cases where there were no next of kin of the deceased entitled to a distributive share in the estate qualified, competent or willing, or otherwise unable to accept such administration. Charles H. Otis, for applt. Held, That the object of the act is to confer upon the surrogate authority to appoint the Trust Company to administer the estates coming within the provisions of the act as he should deem advisable. This act does not come within the rule that permissive language in a statute may be construed as imposing an imperative duty upon the officer authorized to act thereunder. The exercise of the discretion conferred upon the surrogate by said act cannot be reviewed by an appellate tribunal unless it appears that there was an exercise of the power so gross and arbitrary as to amount to an abuse of a legal discretion. Chapter 124 of the Laws of 1882, which provides that the Public Administrator of Kings county shall have the prior right and authority to collect, take charge of and administer the estates of all such deceased persons as "shall die leaving any assets and effects in the county of Kings, and there shall be no widow, husband or next of kin entitled to a distributive share in the estate of said intestate, resident in the State, entitled, competent or willing to take out letters of administration on such estate. Held, That Chapter 383 of the Laws of 1877, in so far as it purports to confer power to issue letters of administration to the Trust Company in the cases provided for, is repugnant to the Act of 1882 and must be deemed to have been repealed thereby. Order of General Term, reversing decree of surrogate, reversed, and decree of surrogate affirmed. Opinion by Ruger, Ch. J. All concur. BENEVOLENT SOCIETIES. N. Y. COURT OF APPEALS. Hellenberg, exr, applt., v. Dis trict No 1, Independent Order of B'nai Berith, respt. Decided Feb. 5, 1884. Plaintiff's testator was a member of the defendant organization, which agreed to pay $1,000 on his death to such person or persons as he may have formally designated to his lodge prior to his death. He designated his mother, who died before he did. He designated no other person to his lodge but assumed to dispose of said sum by will, of which disposition the lodge had no notice during his lifetime. Held, That a designation was the condition precedent to defendant's liability and that the one in the will was not valid. L., plaintiff's testator, was at the time of his death a member of a lodge under the jurisdiction of defendant, which was a corporation organized pursuant to Chapter 188 of the Laws of 1878. When he became a member he agreed to pay certain dues and assessments as specified, and defendant agreed upon the death of L. to pay $1,000 to his wife, if living; if dead, to his children, and if there should be neither wife nor children then to "such person or persons as he may have formally designated to his Lodge prior to his death," such sum to be collected by assessments. L. prior to his death designated his mother, describing the payment directed as "the one thousand dollars my heirs are to receive" of the corporation. He had neither wife nor children. His mother died before he did. He never designated to his lodge any body living at his death to whom the money could be or was payable, but he made a will and assumed to dispose of the $1,000 in that way. The designation contained. in the will was in no way brought to the notice of the lodge during the lifetime of L. This action was brought by his executor to recover the $1,000 claimed to be due. David Leventritt, for applt. Adolph L. Sanger, for respt. Held, That a designation was the condition precedent of defendant's liability; that the one in the will was not valid because defendant had no notice of it. 44 Md., 429; 29 Ohio St., 557; 13 Bush, 489; 28 Minn., 447; 7 Daly, 168; 23 Hun, 478. Sup. Council v. Priest, 46 Mich., 429; Expressman's Aid Society v. Fenn, 9 Mo. App., 412; Erdman v. Mut. Ins. Co., 44 Wis., 376; Roswell v. Eq. Aid Union, 13 Fed. R., 840, distinguished. Judgment of General Term, affirming judgment for defendant, affirmed. All con Opinion by Finch, J. cur. CONVERSION. N. Y. COURT OF APPEALS. Hynes, respt., v. Patterson et al., exrs, applts. Decided Feb. 8, 1884. Where notes made for a certain purpose are placed in the hands of a custodian to carry out that purpose, and he with full knowledge allows them to be diverted from the purpose intended, he becomes liable to the maker in damages for the conversion of them. If it is agreed that the maker of accommodation notes is to receive a certain amount as compensation for the loan of his credit, |